HomeMy WebLinkAboutMeunier 98-07-02
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IN THE MATTER OF AN ARBITRATION
BETWEEN
SOUTH RIVER-MACHAR AMBULANCE SERVICES
(Hereinafter referred to as the "Employer")
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
AND ITS LOCAL 637
(Hereinafter referred to as the "Union")
Re: Grievance of Pauline Meunier
, APPEARANCES FOR THE UNION Mr. Jim Gilbert, Grievance Officer
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Ms. Pauline Meunier, Grievor
APPEARANCES FOR THE EMPLOYER Mr. Don Robinson, Counsel
Mr. Stan Fleet, Manager
Mr. Bob Bark~r, Chairman, South River-Machar Ambulance Board
DATE OF HEARING June 4, 1998
DATE OF AWARD July 2, 1998
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This award concerns the grievance of Pauline Meunier which alleges that she was improperly
compensated for her maternity and parental leave contrary to articles 8.01 and 8.02 of the collective
agreement. The articles at issue are contained in the central provisions of the master collective
agreement between the parties. The facts of this particular. grievance are illustrative of the real issue
between the parties, which is the interpretation to be given to the phrase "actual weekly rate of pay".
The grievor is a part-time ambulance attendant. On average, she worked between nine and eleven
shifts per month and was on call for sixty to eighty hours. She was paid $2.10 per hour on standby
and overtime rates for any call-backs. She began her maternity leave on October 23, 1997. A few
months before that she had discussed with her employer her previous 26 weeks of employment.
They averaged her bi-weekly gross pay to be $1260.00 and that figure was used by the Employer
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on her Record of Employment for U.1. benefits.
The relevant provision of the collective agreement read as follows:
8.01 In respect of the period of pregnancy leave, payments made according to the
Employer's Supplementary Unemployment Benefit Plan will consist of the
following:
(a) for the two (2) week unemployment insurance
waiting period, payments equivalent to sixty-six
and two-thirds percent (66 2/3%) of the actual
weekly rate of pay for her classification, which she
was receiving on the last day worked prior to the
commencement of the pregnancy leave, and
(b) up to a maximum of fifteen (15) additional weeks,
payments equivalent to the difference between the
sum of the weekly ill benefits the employee is
eligible to receive and any other earnings received
by the employee, and seventy-five percent (75%)
of the actual weekly rate of pay for her
classification, which she was receiving on the last
day worked prior to the commencement of the
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pregnancy leave.
8.02 In respect of the period of parental leave, payments made according (sic) the
Employer's Supplementary Unemployment Benefit Plan will consist of the
following:
(a) for the two (2) week unemployment insurance
waiting period, payments equivalent to sixty-six
and two-thirds percent (66 2/3%) of the actual
weekly rate of pay for her classification, which she
was receiving on the last day worked prior to the
commencement of the pregnancy leave, and
(b) up to a maximum of ten (10) additional weeks,
payments equivalent to the difference between the
sum of the weekly UI benefits the employee is
eligible to receive and any other earnings received
by the employee, and seventy-five percent (75%)
of the actual weekly rate of pay for her
classification, which she was receiving on the last
day worked prior to the commencement of the
pregnancy leave.
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. The grievor was paid according to the following letter, dated January 13, 1998 and signed by
Mr. Fleet, Manager of the ambulance services:
Please find enclosed a cheque for the pay period Jan. 1, 1998 to Jan. 13, 1998.
As per our conversation, I did some research to determine whether ambulance services in the
area paid Employer's Supplementary Unemployment Benefits based on past Record of
Employment history or on projected wage loss taken from established schedules. I found that
there was the same number of services using the Record of Employment as are using a .preset
schedule to establish a normal weekly wage for part-time work. I discovered that services
utilizing the Record of Employment either did not have a preset schedule, or did not have un-
scheduled cãll back or did not incur unscheduled overtime. The services that did have
established preset schedules used existing schedule to predict what was a normal wage.
The issue was brought to the South River-Machar Ambulance Services Board. It was
established by the board that maternal and parental wage loss shall be determined by the loss
of existing pre-scheduled work, as is their understanding of the collective agreement. This
includes scheduled on-site and scheduled stand by hours. Random, non-scheduled overtime
and non-scheduled call back is not considered part of a normal wage.
The following serves as the formula used, given the figures you presented:
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I 9 days per month scheduled at 33..60 per day = $1325.52
10 stand by shifts per month scheduled at $33.60 = $ 336.00
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Projected total monthly wage loss =$1661.52
Projected biweekly wage loss =$830.76
Employer's Supplementary Unemployment Benefit Plan =$830.76 x 75% =$623.0
$623.07 less $413.00 (E.I. Contribution) =$210.07
Total Employer's Supplementary Unemployment Benefit =$210.07 per biweekly pay
period
Please contact this office in can be offurther assistance.
Mr. Gilbert, for the Union, took the position that the basis for calculating the grievor's actual weekly
wage rate includes the weekly average of all wages paid to her in the weeks preceding her leaves
of absence. In negotiating this clause the parties intended to maintain an employee's economic level
so that, during a pregnancy or paternal leave he/she would not have to make major adjustments to
) their life styles. Therefore, the Union asserted, its interpretation is more consistent with that
purpose and more in keeping with social policy. The problem with part-time employees is that it
is not always easy to determined their weekly rates because their hours of work vary greatly. That
is why the parties defined it as "actual weekly rate of pay". They meant to calculate the SUB
benefits by reference to the actual wages earned by an employee. The word "actual" was intended
to have meaning. The Employer's interpretation would, in essence, read out that word from the
provISIOn.
The Union referred the Board to the following cases: Re Ministry of the Attorney-General and
OPSEU (Auger-Beaulieu) (August 27, 1997), GSB # 469/92 and Re Windsor Western Hospital"
Centre and Service Employees' Union, Local 210 (1993), 33 LA.C. (4th) 129 (Kennedy).
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Mr. Robinson, counsel for the Employer, suggested that the answer to this grievance is to be found
in the principles of contract interpretation and not by reference to any other decisions. It was its
position that, since the Union was seeking to enhance an already generous provision for SUB
benefits, the clause should be strictly interpreted. The phrase "actual weekly rate of pay"
specifically refers to the rate of pay the grievor received on "the last day worked prior to the
commencement of the leave". That must exclude any unscheduled overtime or call back shifts and
can only mean the shifts actually worked in her classification.
In support of its position the Employer relied on the following cases: Re Ottawa Civic Hospital
and Ontario Nurses' Association (January 10, 1996), unreported (Herlich) and Re The Freeport
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Hospital and London and District Service Workers' Union, Local 220 (May 11, 1988),
unreported (RD. Brown).
DECISION
The narrow issue before me is what the phrase "actual weekly rate of pay" means in the context of
this collective agreement. The cases referred to me by the parties are of limited assistance. The
Windsor Western case (supra), involved a question of whether the percentage in lieu of benefits
was to be included in the phrase "regular weekly earnings" as it pertained to SUB payments. The
collective agreement in that case defined the amounts to be included as:
"The employee's regular weekly earnings shall be determined by multiplying her regular
hourly rate on her last day worked prior to the commencement of the leave times her normal
weekly hours",
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The Board found that the phrase "regular hourly rate" was set out in the salary schedule and did not
include the percentage in lieu. Therefore, the calculation of the SUB benefit did not include the
percentage in lieu and the grievance was dismissed.
In the instant case we do not have such a clear definition to guide us. The wage scale in this
collective agreement is expressed as an hourly rate for both full-time and part-time employees.
There is no clearly defined weekly rate of pay. The Employer would define "actual weekly rate of
pay" to mean only those shifts that were pre-scheduled. I could find no support for that
interpretation in the collective agreement. There is no provision in the collective agreement that
suggests that unscheduled hours should be treated differently from scheduled hours. In the Windsor
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Western case (supra), at page 136, It was stated:
...There is no question that the 14% is a part of earnings and represents payment for time
worked. Had the last sentence not been included in art.11.03(b), there would be support for
the union argument that the 14% is a part of regular earnings. However, by including a
specific definition in the clause, the parties have limited the generality of the concept and, for
the purposes of that clause, regular weekly earnings are determined by multiplying the
regular hourly rate that is found in the schedules to the collective agreement by the
. employee's normal weekly hours, and that determines the level of entitlement.
In this case, there is no provision that specifically includes or excludes stand by or call back pay.
Nor is there any provision that specifically derIDes the weekly rate of pay to include rescheduled
hours and exclude unscheduled or emergency hours. What the provision does do however, is derIDe
the weekly rate of pay the word by the word "actual". The canons of interpretation hold that it is
to be presumed that all words in a document are intended to have meaning. The word "actual"
means real or genuine, tangible or realized. All of those synonyms lead to the inescapable
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conclusion that the parties, in defining a weekly rate of pay, intended to base their calculations on
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real or tangible earnings rather than on pre-scheduled shifts that mayor may not have been worked.
In the absence of any restrictive or limiting language to the contrary, the phrase "actual weekly rate
of pay" must be given its plain and ordinary meaning and must be interpreted to include all wages
actually paid.
The grievance succeeds. The grievor is to be compensated for all lost wages as a result of the
Employer's interpretation. I will remain seized in the event the parties encounter difficulty in
implementing this award.
Signed this 2nd day of July, 1998.
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Loretta Mikus